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When U.S. District Judge William Orrick uttered these words in December 1999, demanding that the San Francisco school district stop taking race into consideration when it assigned students to schools, school board members in Berkeley took notice.

The first public school system in the country to voluntarily desegregate in 1968, Berkeley Unified has long had policies in place to ensure that the racial diversity at each individual school site very nearly approximates the racial diversity of the district’s total enrollment; in other words, policies that take race “into consideration” when assigning students to schools.

This is how it came to be, for example, that both Cragmont and Washington elementary schools – schools located in neighborhoods with very different demographics – had student bodies that were 28 percent white in the 1999-2000 school year.

Or how Emerson Elementary school came to have, in that same year, an enrollment that was 42 percent African American and 27 percent white, despite being located at some distance from neighborhoods where African American households are numerous.

Berkeley Unified’s latest desegregation policy, put in place in the mid-’90s, assigns students to schools so that the percentage of white, African American and “Other Ethnicity” students at each school comes within 5 percent of matching the districtwide percentages for these categories.

It could be argued that such a policy is illegal. And the argument may be made sooner rather than later.

Catherine James, associate superintendent of support services for the district, said at least one conservative legal group has made inquiries that could indicate it is considering bringing a case against the Berkeley district.“We are so outspoken about our desire to have a desegregated district,” James said. “We could be a likely target.”

Adding to the district’s anxieties is the fact that they fall under the jurisdiction of the very U.S. district court where Orrick handed down his 1999 decision. There are differences between the San Francisco district and the Berkeley District of course, but still...

Last spring, anticipating the day when a federal judge said to them: “It’s showtime,” the district moved to appoint representatives from each of its elementary and middle schools to a Student Assignment Advisory Committee. The committee was charged with beginning to look at alternative student assignment policies that do not take race “into consideration.”

But after meeting several times and soliciting public input, the committee reported back to the district late last year with its conclusion: keep the current policy. The committee essentially determined that racial integration of schools is so popular in Berkeley that the district ought to be ready to take a stand in court before it considers changing the policy, James said.

The board didn’t exactly agree. So, in a compromise of sorts, the committee has spent the last six months further exploring student assignment policies that could promote diverse schools without explicitly taking race into consideration, while it simultaneously looked at ways to make the district’s current policy more legally defensible.

It presented its most recent findings at last week’s school board meeting.

The board might base student assignment on student’s socio-economic status rather than on race, and achieve a similar diversifying effect, the committee argued. But it could also do so if it found that socio-economic diversity was desirable in and of itself. Any policy whose goal is to maintain racial diversity, whether it does so by use of “racial quotas” or not, is unlikely to stand up in court, according to Advisory Committee Co-chair Derick Miller, incoming president of Berkeley’s PTA Council.

Furthermore, there are inherent difficulties in the socio-economic approach, Miller said, such as finding reliable ways to determine students’ household income.

In terms of defending the district’s current policy, the committee presented statistical information to the board that could begin to make a compelling case that education resources are spread equally among Berkeley schools, and that the quality of education the schools provide is also largely equal.

According to board Director Joaquin Rivera, there are some legal precedents that suggest public school districts can get away with using race in student assignment policies so long as no ethnic group can make the case that it is harmed by such a policy, as might be the case if the policy increased the likelihood that children of a particular ethnicity were assigned to an inferior school.

“In Berkeley, no student in the district would be harmed if he’s assigned to ‘x’ school instead of ‘y’ school,” Rivera said.

In the months ahead, the Student Advisory Assignment Committee will continue to compile statistics related to the “equity” of Berkeley schools, including statistics on student achievement, after school programs, and parent education levels.